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Excellence in many guises

12 November 18

Some highlights from a full day with an impressive programme: this year’s Leading Legal Excellence conference

by Peter Nicholson

A wellbeing session led by Hot Yoga, screen-based polling on what motivates your millennials, and diversity and the gender pay gap. These were just three of the eye-catching breakout sessions on offer at this year’s Leading Legal Excellence, the Law Society of Scotland’s annual conference.

Timed for just before the end of the CPD year, the day’s programme attracted a good number of delegates to the Edinburgh International Conference Centre, not to mention a spectrum of exhibitors and an array of fringe performers.

Inevitably, you had to be selective in what to attend, but it was possible, as in my case, to take in the Brexit negotiations, the evolving legal market and ways of practice, and managing the millennial generation, in addition to the impressive lineup of keynote presentations.

Brexit was something of a recurring theme, with two breakout sessions devoted to it as well as the first keynote address, from Aidan O’Neill QC, counsel for the applicants in the current article 50 judicial review case. Taking the wider theme of “A new era for constitutional litigation”, O’Neill explained the significance of the court having accepted an application for a bare declarator on a point of law, rejecting the approach of previous cases if they stand in the way of proper enforcement of the rule of law. He also indicated a “vast potential” for litigation around any Brexit agreement. Could you, for example, challenge any attempt to exclude a role for the EU Court of Justice?

Introducing the next keynote speaker, Dr Heidi Gardner of Harvard Law School, chair Graham Matthews attempted to work the audience into a little US-style razzmatazz. This did not meet with conspicuous success, but Gardner naturally was undeterred as she launched into demonstrating her research that has measured the financial benefit to be expected from “smart collaboration” within a multi-discipline firm in providing client services. It’s poles apart from cross-selling (which clients hate), and requires breaking down barriers to internal trust, among other obstacles, but done properly it supports more sustainable client relationships, underpins client retention (and that of lateral hires), and, most importantly, significantly increases revenue per client. What’s not to like?

The headline act for the conference was of course Lady Hale. The President of the UK Supreme Court chose as the title of her address “The contribution of Scottish cases to developing United Kingdom Law”, which while more academic-sounding than most of the conference programme, was delivered with a good sprinkling of her Ladyship’s characteristic humorous observations. Although much resentment had been caused especially by 19th century English judges imposing English doctrines on Scots common law – albeit sometimes with the concurrence of their Scottish brethren – the Scots had “got their own back”, especially in the development of the law of negligence, but also in cases dealing for example with Crown privilege, and in establishing the doctrine of forum non conveniens south of the border.

While recognising that Scots and English common law developed from very different standpoints – for Stair, she noted, it was “the common law of the world” – Hale disagreed that it was only the Scots who reason from principle rather than pragmatism, though acknowledged that one does not usually find Scots judges doing the latter. We have more in common than not, she concluded, though she was amused at the different reactions from the respective bars when the newly established Supreme Court decided it would not be necessary for counsel to appear in wig and gown.

And there was an honourable mention for this Journal, referring to the point put in her interview (September 2018, 12) that even to speak of “UK law” was liable to cause raised eyebrows north of the border. Yes, there is much UK law, she asserted: you only have to consider how many areas there are where the same law applies across the jurisdictions.

Reviewer on the spot

A hastily arranged panel session provided a first opportunity for many to hear from Esther Roberton, author of the Review of Legal Services Regulation in Scotland, on why she recommended a new independent body to take over the regulatory roles of the Society and other professional bodies. Referring to her findings surveyed in the lead feature in this issue, she defended her position against former President Christine McLintock and Regulatory Committee convener Carole Ford, who shared the stage.

Among other points Roberton suggested that the profession should have nothing to fear from her approach, as there was “a lot of confidence” among the public in the profession. She believed the English experience indicated that costs could be streamlined so as not to impose an extra burden, though McLintock argued this could be achieved in other ways and the use of volunteers saves much cost at present, while Ford said the startup costs would inevitably be high. She suggested that Ford’s committee is too hidden from public view, to which Ford replied that high visibility was not its aim, but it had still succeeded in raising interest in the working of the Society, as with the permitted use of the term “lawyer”. In response to a challenge on the evidence base for her proposals, she said consumer interests had been arguing for that approach for years. She had also spoken to solicitors who agreed with her position; and maintained it was usually a statement of confidence if you allowed yourself to be regulated by someone else. She believed the Society could continue to play a strong role for the profession; but why should it also prosecute them?

That session added to the length of the conference, but a decent number stayed on to hear the final session, Lord Hope of Craighead in conversation with Austin Lafferty. A wide-ranging and good humoured chat covered everything from Lord Hope’s current role as convener of the cross-bench peers in the House of Lords (he liaises with party whips about Lords business, and reports any complaints from the cross-benchers, but doesn’t monitor voting in any way) to key moments in his legal career. Despite having legal ancestors back to the 17th century, he found work in his father’s solicitor office “boring” and might have taken up a civil service offer, but opted to complete his degree instead. The rest is history. Well, not quite. Hope revealed how he learned early in his career of the risks of not preparing (as counsel for the second accused when the first accused changed his plea), and of the need to record advice given (asked to replace a lost opinion, he managed to give contrary advice).